the plaintiff's understanding was impaired by opiates and suffering, but the defendant had no knowledge of the plaintiff's incapacity, the execution of a release under such circumstances will not render it voidable unless, at the time of its execution, the plaintiff was not able to understand the effect of the release.37 Where a layman, dealing with a lawyer, and ignorant of the law, no consideration having passed, was led to give a release in which he agreed to do the opposite of what he intended and expressed his intention of doing, the release was declared void. Under such circumstances proof of actual fraud in procuring the release is not necessary.39 Where the plaintiff, in reply to an answer setting up a release, alleged that if he did sign it he did so. under the influence of liquor furnished him by the defendant's agents, and testified that he did not recollect signing a release; but the testimony of the subscribing witness and others was that the plaintiff looked over the release with the appearance of reading it, and acknowledged having signed it for the purpose therein stated, and was not intoxicated at the time,-it did not authorize an instruction that if the plaintiff signed the release when he was so drunk that he did not know what he was doing, or without opportunity of understanding its terms, it was not binding. Ignorance of the contents of a release, at the time of signing it, may be sufficient ground to avoid it,-as where a railroad company called its injured servant into its office and questioned him concerning his injuries, and required him to sign a statement and a release without informing him that he was waiving all his rights of damages against the company, at the same time giving him a dollar, and its agent, on being asked what it was for, told him to spend it. But if there were no misrepresentations in procuring the release, the mere fact that plaintiff has not received the one dollar mentioned as the consideration, and that certain parts of the release were not in it when he signed it, will not invalidate the release.42 One will be held to have signed a release with full knowledge of its contents, where his only excuse for signing it without reading it was that he was in a hurry.43

40

§ 7373. Fraud as a Ground for Rescinding a Release.-The only fraud that can be proved at law for the purpose of avoiding a release is that relating to the execution of the instrument, such as misreading

37

Cooney v. Lincoln, 21 R. I. 246; s. c. 42 Atl. Rep. 867.

Mellon v. Webster, 5 Mo. App. 449.

Lusted v. Chicago &c. R. Co., 71 Wis. 391; s. c. 36 N. W. Rep. 857. Houston &c. R. Co. v. Tierney, 72 Tex. 312; s. c. 12 S. W. Rep. 586.

41 Lake Shore &c. R. Co. v. Ehlert, 25 Ohio C. C. 37.

42 Gourley v. West Chicago St. R. Co., 96 Ill. App. 68.

43 Atchison &c. R. Co. v. Vandordstrand, 67 Kan. 386; s. c. 73 Pac. Rep. 113.

it, "surreptitious substitution of one paper for another, or obtaining by some other trick or device an instrument which the party did not intend to give"; and it seems to be well settled that when the signature of an instrument under seal is procured by false representations, the nature of the instrument being fully understood by the party signing it, the effect of such instrument can only be avoided by a separate proceeding in equity.** But on principle this rule is not applicable in the code States, where the distinction between law and equity proceedings has been abolished; and full relief may be had in the same court in one proceeding. To infer fraud in the transaction is to infer a criminal disposition in the alleged perpetrator of the fraud, and that would be contrary to legal presumption; consequently, a release cannot be set aside on mere suspicion, but only on strong and clear testimony. So, if the plaintiff understood what he was doing when he signed the release, and this the law presumes, he is estopped thereby. And the mere fact that the bargain was a hard one, and that the defendant endeavored to get the best of it, will not render the transaction void. And if the release was obtained by holding out the encouragement that the plaintiff would be taken back into the defendant's employ, which the defendant failed to do, it will not avoid the release.45 So, where a release is pleaded, the plaintiff cannot recover unless he introduces evidence sufficient to overcome the prima facia force of the release. ** And if a person has suffered injuries while in the service of another, and asks and receives money from such employer, and signs a receipt acknowledging payment in full for the time lost and medical treatment, which receipt disclaims liability on the part of the employer predicated on the negligence of the employer, the employé cannot afterward sue to recover damages, in the absence of proof of fraud or error in the transaction.47

§ 7374. Examples of Releases Set Aside on the Ground of Fraud.— Where the plaintiff, at the time of the execution of the release of damages to the defendant, was an illiterate woman unable to read or write, and the release was obtained from her during the illness consequent upon her injury, by a physician employed by the defendant to attend her, and in the absence of friends to whom she could look for advice,

"Papke v. G. H. Hammond Co., 192 Ill. 631; s. c. 61 N. E. Rep. 910; aff'g s. c. sub nom. G. H. Hammond Co. v. Papke, 91 Ill. App. 563; Hill v. Northern Pac. R. Co., 104 Fed. Rep. 754; Atchison &c. R. Co. v. Vandordstrand, 67 Kan. 386; s. c. 73 Pac. Rep. 113.

45 Rose v. West Philadelphia R.

Co. (Pa.), 12 Atl. Rep. 78 (no off. rep.).

46 Scandinavian Coal &c. Co. v. Whittaker, 40 Kan. 123; s. c. 19 Pac. Rep. 330.

47 Kelley v. Homer Compress Co., 110 La. 983; s. c. 35 South. Rep. 256.

the jury will be justified in finding the release invalid.48 A release was held invalid where an employer gave his employé a nominal sum, and took from him a release which the employé could not read, and which he alleged he was induced to sign by false representations of the defendant's agent.*9 Where, on the representation of the agent of a railroad company that the money tendered was half wages due the employé for the time he was injured, the injured employé received the money and signed a receipt releasing the railroad company from all liability for the injuries, the employé being unable to read, and he offered to return the money when he ascertained the true nature of the instrument, the court held that the release was not a defense to an action for the injuries;50 and another court held to the same effect, where the release was procured by fraud and deceit practiced upon an illiterate person by inducing him to believe that he was signing a receipt for a gratuity.51 The defendant is estopped from asserting that the plaintiff should not have relied on the statement of its physician, who examined the plaintiff's wife, and who knew that she was seriously injured, but falsely stated to the plaintiff and his wife that she had sustained only slight injuries, by which he intended to deceive the plaintiff and his wife and induce them to sign a release, where the plaintiff and his wife, believing such statement, signed the release, when in fact the injuries were permanent.52

7375. Examples of Releases that were Not Deemed to have been Obtained by Fraud.-But where a claimant for personal injuries alleged that he was tricked into signing a release by the manner in which it was read to him, when he was able to read it for himself, he cannot be relieved from the consequences of his carelessness in failing to assert his right to read it, unless fraud is established by clear proof. And so, where an injured street-car passenger notified the vice-president of the company of her injury, and a person brought her fifty dollars, stating that the vice-president had sent it to her, and she accepted it and executed a release witnessed by her sister,

"Eagle Packet Co. v. Defries, 95 Ill. 598, 602. This ruling falls within the numerous class of cases which hold that a deed, gift, devise, contract, or other beneficial writing obtained from a person through another who stands toward the donor, obligor or grantor in a relation of trust and confidence, is prima facie void, and that it devolves upon such person to show by the clearest evidence that the donor, obligor or grantor was not imposed upon and had proper advice.

49 Schus v. Powers-Simpson Co., 85 Minn. 447; s. c. 89 N. W. Rep. 68. 50 Houston &c. R. Co. v. Milam (Tex. Civ. App.), 58 S. W. Rep. 735 (no off. rep.).

51 Markowitz v. Metropolitan St. R. Co., 32 Misc. (N. Y.) 751; s. c. 65 N. Y. Supp. 784.

52

2 Jones v. Gulf &c. R. Co., 32 Tex. Civ. App. 198; s. c. 73 S. W. Rep. 1082.

53 The Anne L. Mulford, 107 Fed. Rep. 525.

the fact that she thought she was signing a receipt only, and that the money came from the vice-president personally, is not sufficient to avoid the release.54 The plaintiff cannot avoid the effect of the release by showing an unfulfilled promise on the part of the defendant to give him employment if he would execute the release; since, while such unfulfilled promise might be a ground for an action for breach. of contract, it is not a ground for avoiding the release for fraud.55

§ 7376. False and Fraudulent Misrepresentations as a Ground for Rescission. In settlements of claims for damages arising out of negligence, fairness must be used, and if there are willful misrepresentations of facts by the party procuring the release it will constitute a fraud; and in order to avoid the release it is not necessary that the plaintiff have positive knowledge of the falsity of the representations before he has a right to rescind, as the right of rescission depends upon the existence of fraud, and not upon the existence of the plaintiff's knowledge of it.57 It is enough if the plaintiff so far relied upon the fraudulent representations, and was so influenced by them, that they were the moving cause of her signing the release.58 If the maker of a written instrument accepts as true false and fraudulent statements of the opposite party as to the nature and contents of a paper which he is asked to sign, and signs it without availing himself of the opportunity to read it, he is not precluded, on the ground of negligence, from having the release set aside;59 but the fraud must be made to appear by clear and positive proof.

54 De Douglas v. Union Traction Co., 198 Pa. St. 430; s. c. 48 Atl. Rep. 262.

5 Rose v. West Philadelphia R. Co. (Pa.), 12 Atl. Rep. 78 (no off. rep.); Stone v. Chicago &c. R. Co., 30 Am. & Eng. R. Cas. 606 n.; Chicago &c. R. Co. v. Lewis, 109 Ill. 120; s. c. 19 Am. & Eng. R. Cas. 224; Bussian v. Milwaukee &c. R. Co., 10 Am. & Eng. R. Cas. 716; Dixon v. Brooklyn City &c. R. Co., 100 N. Y. 170. See Missouri &c. R. Co. v. Smith, 28 Tex. Civ. App. 565; s. c. 68 S. W. Rep. 543.

56 Indiana &c. R. Co. v. Fowler, 103 Ill. App. 565; s. c. aff'd, 201 Ill. 152; 66 N. E. Rep. 394; Galloway v. San Antonio &c. R. Co. (Tex. Civ. App.), 78 S. W. Rep. 32 (no off. rep.).

57 Peterson v. Chicago &c. R. Co., 38 Minn. 511; s. c. 39 N. W. Rep. 485. If the plaintiff, at the time of accepting the second and last in

Where the party induced to exe

stallment of a release, knew of the falsity of one of the representations made by the defendant, that representation cannot be used to avoid the release; but such representation and its falsity are admissible in evidence to prove the fraudulent character of another contemporaneous statement: Peterson v. Chicago &c. R. Co., 36 Minn. 399; s. c. 31 N. W. Rep. 515. See Pennsylvania R. Co. v. Shay, 82 Pa. St. 198.

58 Peterson v. Chicago &c. R. Co., 38 Minn. 511; s. c. 39 N. W. Rep. 485.

59 Houston &c. R. Co. v. Burns (Tex.), 63 S. W. Rep. 1035 (no off. rep.); Western .Railway v. Arnett, 137 Ala. 414; s. c. 34 South. Rep. 997; New Omaha &c. Electric Light Co. v. Rombold, Neb.; s. c. 93 N. W. Rep. 966.

60 Western Railway v. Arnett, 137 Ala. 414; s. c. 34 South. Rep. 997; post, § 7384.

cute a release is illiterate, and there is no person present to whom he can look for information and advice, except the agents of the party seeking the release, he has a right to rely on their statements and representations as to the nature and contents of the release,1 and this is manifestly a wholesome doctrine. But if a misrepresentation goes to the legal effect of the release it will not avoid the instrument, except where there exists a relation of trust and confidence between the parties.6

62

§ 7377. Illustrative Cases.—Where a woman executed a release in reliance upon the defendant's representations that it was a mere receipt for money which the defendant then paid, and she was sick and suffering greatly at the time from the effect of her injuries, the court held that it was not an unreasonable act upon her part to sign the release without reading it.63 Where a railroad company set up a release as a defense to an action for personal injuries, and it appeared that the releasor was illiterate and signed by mark, that no money was paid the releasor, a portion of the release where the consideration should have been inserted being blank, that the release was not read to the plaintiff, and that he was informed that the instrument was for the purpose of enabling the person who had nursed him to secure money from the railroad company, and that the scroll following his name was not made by him,—it was error to nonsuit the plaintiff.4 A release is not a bar to an action for personal injuries, where it was executed while the plaintiff was sick and in need of money, upon the representation by the agent of the defendant that it would be a disgrace to appear in court, the money being returned and the release repudiated the following day. Nor is a release a bar to an action for damages where the agent of the railroad company obtained the release from the plaintiff under the supposition on the part of the plaintiff that he was receipting for only a small amount of money for his expenses while detained by an accident, such belief being induced by the agent. Where the plaintiff was induced to sign a release while in bed shortly after his injuries, by the representation of the defendant's agent that the instrument was a written statement that the plaintiff entertained no ill-will against the defendant, the release may be

65

61 Indiana &c. R. Co. v. Fowler, 201 Ill. 152; s. c. 66 N. E. Rep. 394. 62 Jackson v. Pennsylvania R. Co., 69 N. J. L. 79; s. c. 54 Atl. Rep.

532.

Chesapeake &c. R. Co. v. Howard, 14 App. (D. C.) 262; s. c. aff'd, 178 U. S. 153; 20 Sup. Ct. Rep. 880; 44 L. ed. 1015.

64 Boutten v. Wellington &c. R. Co., 128 N. C. 337; s. c. 38 S. E. Rep. 920.

65 Stone v. Chicago &c. R. Co., 66 Mich. 76; s. c. 30 Am. & Eng. R. Cas. 600; 33 N. W. Rep. 24; 9 West. Rep. 596.

06 Chicago &c. R. Co. v. Lewis, 109 Ill. 120.